Bishop v. Carpenter

Headnote

When a summons is issued by a justice of the peace, returnable forthwith, on the representation of the plaintiff, that he is in danger of losing the benefit of the process by delay, the representation should be supported by the oath or affirmation of the party; but if the defendant-appears and goes into trial without excepting to it, the objection is waived, and the defect cured.

Certiorari to Justice Silver. It appeared from the

record, that the summons was issued returnable forthwith, on the “representation of the plaintiff, that he believed he would lose the benefit of the process by delay.” The process was served and returned the same day; the parties appeared, and being ready for trial, after hearing the evidence in the case, judgment was rendered for the plaintiff below.

The error assigned was, that the summons had been issued returnable forthwith, on the representation merely of the plaintiff, that he believed that he would lose the benefit of the process by delay, without the oath or affirmation of the party, and without the justice being otherwise satisfied that such was the case.